Employing Guard and Reserve Members in Minnesota

Employer Guide · Updated September 2026 · 16 min read

Hiring someone who serves in the National Guard or a Reserve component means planning around drill weekends, annual training and the occasional mobilization. Federal law (USERRA) and several Minnesota statutes set the rules. This guide walks Minnesota employers through what those laws require, how to schedule around military duty without breaking them, how Minnesota Paid Leave treats military families, and where to get free help. The questions at the end answer common employer questions and the ones your Guard and Reserve employees may ask.

USERRA from the employer side: who is covered and what you owe

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the federal law that protects the civilian jobs of people who serve. It is written at 38 U.S.C. Chapter 43, and the Department of Labor's rules are at 20 CFR Part 1002. It is not limited to large companies: 20 CFR 1002.34 says USERRA applies to all public and private employers in the United States regardless of size, and gives the example of an employer with only one employee.

The service it protects is broad. Under 38 U.S.C. 4303(13), service in the uniformed services includes inactive duty training (the drill weekend), active duty for training (annual training and military schools), active duty, full-time National Guard duty, absence for an exam to determine fitness for any of that duty, and absence to perform authorized funeral honors duty. It also includes State active duty of 14 days or more, and State active duty in response to a national emergency or major disaster declared by the President. A shorter State active duty call-up that is not tied to a presidentially declared emergency or disaster falls outside USERRA. Minnesota fills part of that gap: section 192.261, subdivision 6, covered in the next section, gives private-sector employees leave and reinstatement rights when they serve on active service during an emergency declared by the proper authority of any state.

The core duty is not to discriminate. Under 38 U.S.C. 4311(a), a person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service may not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment on that basis. Under 4311(c), you violate the law if the service or the obligation to serve was a motivating factor in your decision, unless you can prove you would have made the same decision anyway. Section 4311(b) separately bars retaliation against anyone who enforces or exercises a USERRA right, testifies, or helps in an investigation, whether or not that person has ever served.

The other half is reemployment. In most cases an employee who leaves for service, gives notice, stays within the five-year limit, comes back on time and is not separated under disqualifying conditions returns with the seniority, status and pay they would have had. Our USERRA guide for service members covers those conditions in detail. This guide focuses on what they mean for your scheduling, payroll and HR practice.

There is also a notice duty. 38 U.S.C. 4334 requires every employer to give the people who have USERRA rights a notice of their rights, benefits and obligations, and says posting it where you customarily place employee notices meets the requirement. The Department of Labor publishes the text as the Your Rights Under USERRA poster and says employers may also hand, mail or email it, as long as the full text is provided.

• Covers every employer, public or private, regardless of size (20 CFR 1002.34)
• Protects drill, annual training, active duty, full-time Guard duty, fitness exams, funeral honors duty, and State active duty of 14 days or more or tied to a presidentially declared emergency or disaster (38 U.S.C. 4303(13))
• Bars using service or the obligation to serve as a motivating factor in hiring, firing, promotion or any benefit of employment (38 U.S.C. 4311)
• Requires you to give employees the USERRA notice; posting the Department of Labor poster where you post other notices satisfies it (38 U.S.C. 4334)

Minnesota statutes every employer should know

Minnesota adds its own rules on top of USERRA. The statutes below are summarized from the 2025 Minnesota Statutes published by the Office of the Revisor of Statutes. As of September 2026, the Revisor's table of statutes changed in the 2026 session showed no changes to any of them.

Section 192.34 makes it unlawful for any employer to discharge a person because of membership in the military or naval forces of the United States, of Minnesota or of any other state; to hinder or prevent a person from performing military service they are called on to perform by proper authority; or to dissuade a person from enlisting by threats or injury to their employment, trade or business. A violation is a gross misdemeanor, so this is a criminal statute. Its wording is not limited to federal duty: it reaches any military service a person is called on to perform by proper authority.

Section 192.261, subdivision 6, reaches private employers too. An employee who is not a Minnesota public employee and who serves on active service in the military forces (which Minnesota's Military Code defines to include the National Guard) during an emergency declared by the proper authority of any state is entitled to leave and reinstatement in the same manner and to the same extent that subdivisions 1 to 4 give public employees. The leave is unpaid. It reaches state emergency call-ups that are too short for USERRA. Subdivision 2 sets the conditions for reinstatement, including a written application within 90 days after the service ends and a release from proper military authority showing the service was satisfactory.

Section 181.535 governs hiring. No person may, with intent to discriminate, ask a job applicant whether they are a member of the National Guard or a reserve component of the armed forces, or require an applicant to make an oral or written statement about Guard or Reserve status as a condition of employment. The section does not stop a public employer from asking in order to decide whether veterans preference applies. The practical rule is to leave Guard and Reserve status out of applications and interviews, and if a candidate raises it, to keep it out of the decision, which USERRA requires anyway.

Section 192.325 protects employees whose family members serve. An employer may not discharge or take adverse action against an employee because the employee's spouse, parent or child is a member of the military forces of the United States, Minnesota or any other state. It also requires a reasonable amount of unpaid time off, on reasonable notice from the employee, for departure or return ceremonies, military family training or readiness events, and official reintegration events that military authorities invite the employee to, up to two consecutive days or six days in a calendar year. You may not make the employee use vacation for those events.

Two more unpaid leave laws apply to every Minnesota employer with one or more employees. Section 181.947 requires up to ten working days of unpaid leave for an employee whose immediate family member (for this section, a parent, child, grandparent, sibling or spouse) was injured or killed while engaged in active service. The employee gives as much notice as practicable, and the ten days can be reduced by any paid leave you provide. Section 181.948 requires unpaid leave, unless it would unduly disrupt your operations, for an employee to attend the send-off or homecoming ceremony of an immediate family member ordered into active service in support of a war or other national emergency. You may limit that leave to the time actually needed, up to one day in a calendar year. For ceremony leave under 181.948, immediate family is broader: it also includes a legal guardian, grandchild, fiance or fiancee.

Section 197.4551 is permissive, not mandatory. A private employer may grant preference to a veteran in hiring and promotion, and to the spouse of a veteran with a service-connected permanent and total disability or the surviving spouse of a deceased veteran, and doing so does not violate state equal employment opportunity law. The preference is for veterans as section 197.447 defines them, a definition that turns on active duty service and a separation under honorable conditions, so check it before applying a written preference policy to a drilling Guard or Reserve member.

Section 181.536 requires every Minnesota employer with more than 50 full-time equivalent employees to display the state's veterans benefits and services poster where employees can see it. The Department of Labor and Industry publishes it with its other workplace posters.

• 192.34: no firing for membership, no hindering service, no threats to discourage enlistment; a gross misdemeanor
• 192.261, subd. 6: unpaid leave and reinstatement for private-sector employees who serve during a state-declared emergency
• 181.535: no asking applicants about Guard or Reserve status, or requiring a statement about it, with intent to discriminate
• 192.325: no adverse action over a family member's service, and unpaid time for military family events up to 2 consecutive days or 6 days a year
• 181.947: up to 10 working days of unpaid leave when an immediate family member is injured or killed in active service
• 181.948: unpaid leave for a mobilized family member's send-off or homecoming ceremony, which you may cap at 1 day a year
• 197.4551: you may, but do not have to, give veterans a preference in private hiring and promotion
• 181.536: display the veterans benefits poster if you have more than 50 full-time equivalent employees

If you are a Minnesota public employer

Cities, counties, school districts, state agencies and other public employers carry extra duties. Under section 192.26, a public officer or employee who is a member of the National Guard or a reserve component is entitled to leave without loss of pay, seniority, efficiency rating, vacation, sick leave or other benefits while engaged in training or active service ordered or authorized by proper authority, for state or federal purposes, up to 15 days in a calendar year. The employee chooses when to take those days, all at once or spread across the year.

Section 192.261 gives public employees unpaid leave for active service in time of war or other declared emergency, with a right to reinstatement, and its subdivision 5 requires leave for active duty for training and inactive duty training for public employees not covered by section 192.26, with return to the same seniority, status, pay and vacation. Its subdivision 6, covered above, extends the leave and reinstatement rights in subdivisions 1 to 4 to private-sector employees who serve during a state-declared emergency.

On differential pay, section 43A.183 requires state agencies to pay eligible members the difference between their state earnings and their military base pay while in active service, and section 471.975 allows cities, counties and towns to pay that difference and requires school districts to. Both statutes leave annual training and periodic inactive duty training out of the service that triggers differential pay.

Scheduling around drill weekends and annual training

The traditional commitment is often described as one weekend a month and two weeks a year, but ESGR (Employer Support of the Guard and Reserve, a Department of Defense program) notes that today's requirements often ask more of Reserve Component members than that. Plan around the calendar your employee actually has.

Notice, not permission. Under 20 CFR 1002.85, the employee, or an appropriate officer of their unit, must give you advance notice, and it may be verbal or written and informal. USERRA sets no minimum, though the Department of Defense strongly recommends at least 30 days when feasible, and 38 U.S.C. 4312(b) excuses notice when military necessity or the circumstances make it impossible or unreasonable. Under 20 CFR 1002.87, the employee does not need your permission to go. ESGR's employer FAQ adds that USERRA does not require the employee to hand over a copy of orders when giving notice, and that you cannot make the employee find a replacement for the time away.

No veto on timing. 20 CFR 1002.104 says the employee is not required to accommodate your concerns about the timing, frequency or duration of service, and you cannot refuse reemployment because you think the service is unreasonable. What you can do is raise the concern with the appropriate military authority. ESGR explains that Department of Defense Instruction 1205.12 directs the Reserve Component representative to consider written employer requests to adjust a member's absences, unless military necessity or the circumstances prevent it. Units train together, so treat rescheduling as the exception. You may ask your employee for a unit point of contact for these questions.

Travel and rest count. Under 20 CFR 1002.74, an employee must have enough time after leaving work to travel safely and arrive fit for duty. The regulation's own example is an employee who works a full overnight shift and would travel straight to a full day of duty: that employee is not considered fit, so the absence from that shift is part of the protected service. On the way back, 38 U.S.C. 4312(e)(1)(A) requires an employee returning from service of less than 31 days to report at the beginning of the first full regularly scheduled work period on the first full calendar day after service ends, after time for safe travel home plus eight hours. 20 CFR 1002.181 says prompt reinstatement after a weekend of National Guard duty generally means the next regularly scheduled working day.

Vacation is the employee's choice. 38 U.S.C. 4316(d) lets the employee use accrued vacation, annual or similar paid leave during service if they ask, and says no employer may require it. 20 CFR 1002.153 repeats the rule and adds that the employee is not entitled to use accrued sick leave for service unless you allow sick leave for any reason or let other employees on comparable leave use it.

• Ask Guard and Reserve employees for their drill and annual training calendar as soon as their unit publishes it, and plan coverage around it
• Avoid scheduling required training, reviews or mandatory overtime on known drill dates
• Do not count military absences against attendance, bonus or promotion criteria; USERRA bars denying any benefit of employment because of service
• Give the employee the shift before duty off when working it would leave them unfit to report
• Keep a short written military leave policy and make sure every supervisor has read it
• If a date truly conflicts with business needs, write to the unit or call ESGR; never tell the employee to skip duty

Pay, benefits and salaried employees during short military leave

As a general rule, USERRA does not require a private employer to pay an employee for time not worked because of service; ESGR's employer FAQ says so directly. The exception is comparable leave. 38 U.S.C. 4316(b) requires that an employee away for service be treated as on furlough or leave of absence and receive the rights and benefits not based on seniority that you generally give employees of similar seniority, status and pay who are on furlough or leave. Under 20 CFR 1002.150(b), when those benefits vary by type of leave, the employee must get the most favorable treatment you give any comparable form of leave. Duration may be the most significant factor in deciding whether two kinds of leave are comparable, and the purpose of the leave and whether the employee can choose when to take it also count. So if you pay employees during comparable short absences, such as jury duty, you may owe the same pay for short military leave.

Salaried exempt employees need care. Under the federal salary basis rule at 29 CFR 541.602, an exempt employee must receive the full salary for any week in which they perform any work. The rule says you cannot make deductions from an exempt employee's pay for absences caused by temporary military leave, but you can offset military pay the employee receives for a particular week against the salary due for that week without losing the exemption. So if a salaried manager works Monday to Thursday and leaves Friday for drill, the week's salary is still owed, less any military pay you choose to offset. No salary is owed for a workweek in which the employee performs no work.

Health coverage can continue. Under 38 U.S.C. 4317(a), an employee absent for service can elect to continue employer health coverage for up to 24 months. For service of less than 31 days, you may charge only the normal employee share. For longer service, the plan may charge up to 102 percent of the full premium.

Differential pay is a choice for private employers, and for taxable employers the tax code rewards it. 26 U.S.C. 45P gives employers a credit equal to 20 percent of eligible differential wage payments, counting up to $20,000 per qualified employee per year. The payments must cover a period when the employee is on active duty for more than 30 days (26 U.S.C. 3401(h)(2)), and the employee must have worked for you for the 91 days before that period, so drill weekends and a standard two-week annual training period do not qualify. No credit is allowed for a year in which you are under a final federal court order for a USERRA violation, or for the two years after. Organizations exempt from federal income tax cannot claim it, apart from farmers' cooperatives described in section 521 (26 U.S.C. 45P(e) and 52(c)). Ask your tax adviser how it applies to you.

When drill turns into a deployment

Longer orders change the timelines. Under 38 U.S.C. 4312(e), an employee who served more than 30 days but less than 181 days must apply for reemployment within 14 days after service ends, and one who served more than 180 days has 90 days. Missing the deadline does not automatically forfeit their rights; under 4312(e)(3) it makes them subject to your normal rules and discipline for absence from scheduled work.

For service of more than 30 days, you may ask for documentation showing the application is timely, the five-year limit has not been exceeded, and the separation was not disqualifying (20 CFR 1002.121). Under 38 U.S.C. 4312(f)(3), you cannot deny reemployment because that documentation does not exist yet or is not readily available when you ask.

Reemployment must be prompt: 20 CFR 1002.181 says within two weeks of the application, absent unusual circumstances. The returning employee is generally entitled to the escalator position, the job they would have held with reasonable certainty had they not left, with its seniority, status and pay (38 U.S.C. 4313 and 20 CFR 1002.191). After reemployment, 38 U.S.C. 4316(c) bars discharge except for cause for one year if the service lasted more than 180 days, or for 180 days if it lasted more than 30 days but less than 181.

The stakes went up in 2025. Under 38 U.S.C. 4323(d), as amended by the Dole Act (Public Law 118-210, signed January 2, 2025), a court may order lost wages and benefits with interest at 3 percent a year and, if the employer knowingly failed to comply, liquidated damages of the greater of $50,000 or those lost wages, benefits and interest. The same law made fee awards mandatory. When an employee brings their own case with private counsel and prevails, 38 U.S.C. 4323(h)(2) now says the court shall award reasonable attorney fees, expert witness fees and other litigation expenses.

Minnesota Paid Leave and military families

Minnesota Paid Leave, run by the Department of Employment and Economic Development, includes Military Family Leave. Under Minnesota Statutes section 268B.01, subdivision 33, a qualifying exigency is a need arising out of a military member's active duty service or notice of an impending call or order to active duty. Examples in the statute include arranging care for the member's child or other dependent, making financial or legal arrangements, attending counseling, attending military events or ceremonies, spending time with the member during rest and recuperation leave or after return from deployment, and making arrangements after the member's death. A military member means a current or former member of the armed forces, including the National Guard and reserves, who is a Minnesota resident (unless deceased) and a family member of the employee taking leave.

Two points matter for employers. First, this is leave for the family, not for the service member: none of the Paid Leave leave types is for an employee's own drill or annual training, which stay under USERRA and the statutes above. Second, Paid Leave carries its own employer duties under section 268B.09, including job protection beginning 90 calendar days after hire, keeping group health coverage in place during leave (the employee keeps paying their share), and a ban on retaliating against or interfering with an employee who applies.

Benefit amounts, the number of weeks available, premiums and application steps are set and updated by the program, so check pl.mn.gov rather than relying on a figure printed here. The program's Military Family Leave page explains what counts as an exigency and what documentation applicants need, and its employer pages explain your role in reviewing applications and how Paid Leave works alongside vacation, sick pay and other leave.

If you are covered by the federal Family and Medical Leave Act (generally private employers with 50 or more employees, and all public agencies), FMLA qualifying exigency leave may apply too. It is unpaid, job-protected leave for an eligible employee whose spouse, son, daughter or parent is on covered active duty or has been called to it, which for Guard and Reserve members means deployment to a foreign country under a federal call to active duty in support of a contingency operation (29 CFR 825.126). The Paid Leave program says you may choose to run FMLA leave at the same time as Paid Leave when both are for the same reason, as long as you follow the program's requirements for informing employees.

Free help, and ways to show support

ESGR is the first call for most questions. It informs and educates employers and service members about USERRA, does not enforce the law, and is free. Its Customer Service Center answers USERRA questions and refers disputes to trained volunteer ombudsmen for neutral mediation. As of September 2026, esgr.mil lists the number as 800-336-4590, Option 1, Monday through Friday except federal holidays, 8:00 a.m. to 4:30 p.m. Eastern, with online request forms as an alternative. ESGR has a committee in every state, including Minnesota.

The Department of Labor's Veterans' Employment and Training Service (VETS) administers USERRA and takes formal complaints. Employees can file with VETS or bring their own case (38 U.S.C. 4323), and under 38 U.S.C. 4327(b) there is no deadline for filing.

If you want to go beyond the minimum, ESGR's Statement of Support program lets an employer sign a pledge to support its employees' military service, and service members can nominate supportive supervisors and employers for ESGR awards.

Sources

Every figure above is drawn from these sources. Figures and rules change, so check the current source before you act.

• 38 U.S.C. 4302: Relation to other law and plans or agreements (Office of the Law Revision Counsel)
• 38 U.S.C. 4303: Definitions (Office of the Law Revision Counsel)
• 38 U.S.C. 4311: Discrimination and acts of reprisal prohibited (Office of the Law Revision Counsel)
• 38 U.S.C. 4312: Reemployment rights (Office of the Law Revision Counsel)
• 38 U.S.C. 4313: Reemployment positions (Office of the Law Revision Counsel)
• 38 U.S.C. 4316: Rights, benefits, and obligations of persons absent for service (Office of the Law Revision Counsel)
• 38 U.S.C. 4317: Health plans (Office of the Law Revision Counsel)
• 38 U.S.C. 4323: Enforcement against a State or private employer (Office of the Law Revision Counsel)
• 38 U.S.C. 4327: Inapplicability of statutes of limitations (Office of the Law Revision Counsel)
• 38 U.S.C. 4334: Notice of rights and duties (Office of the Law Revision Counsel)
• 20 CFR 1002.34: Which employers are covered by USERRA?
• 20 CFR 1002.74: Time between leaving employment and beginning service
• 20 CFR 1002.85: Advance notice to the employer
• 20 CFR 1002.87: No employer permission required
• 20 CFR 1002.104: Timing, frequency and duration of service
• 20 CFR 1002.121: Documentation on application for reemployment
• 20 CFR 1002.150: Non-seniority rights and benefits during a period of service (comparable leave)
• 20 CFR 1002.153: Use of accrued vacation and sick leave during service
• 20 CFR 1002.181: Prompt reemployment
• 20 CFR 1002.191: The escalator position
• 29 CFR 541.602: Salary basis (eCFR)
• 29 CFR 825.100: The Family and Medical Leave Act (job-protected, unpaid leave)
• 29 CFR 825.126: FMLA leave because of a qualifying exigency
• 29 CFR 825.104: FMLA covered employer
• 26 U.S.C. 45P: Employer wage credit for employees who are active duty members of the uniformed services
• 26 U.S.C. 3401: Definitions (differential wage payments, subsection (h))
• 26 U.S.C. 52: Special rules (subsection (c), tax-exempt organizations)
• 26 U.S.C. 521: Exemption of farmers' cooperatives from tax
• Minn. Stat. 192.34: Discrimination with respect to employment
• Minn. Stat. 181.535: Armed forces reserves or National Guard status
• Minn. Stat. 192.325: Discrimination against family of service member; unpaid leave required
• Minn. Stat. 181.947: Leave for immediate family members of military personnel injured or killed in active service
• Minn. Stat. 181.948: Leave to attend military ceremonies
• Minn. Stat. 197.4551: Permissive preference for veterans in private employment
• Minn. Stat. 197.447: Veteran, defined
• Minn. Stat. 181.536: Posting of veterans' benefits and services
• Minn. Stat. 192.26: Paid leave for public officers and employees on military duty
• Minn. Stat. 192.261: Leave of absence (subdivision 6: state emergencies, reemployment rights of nonpublic employees)
• Minn. Stat. 190.01: Military Code
• Minn. Stat. 190.05: Definitions (military forces, active service)
• Minn. Stat. 43A.183: Salary differential for state employees in active service
• Minn. Stat. 471.975: Pay differential for political subdivision employees on active duty
• Minn. Stat. 268B.01: Paid Leave definitions (subdivision 33, qualifying exigency)
• Minn. Stat. 268B.09: Paid Leave employment protection
• Revisor of Statutes: Statutes Changed (Table 2), 2026 session
• Minnesota Paid Leave: Paid Leave for military families
• Minnesota Paid Leave: Employer roles and responsibilities
• Minnesota Paid Leave: Coordinating Paid Leave with other benefits
• U.S. Department of Labor VETS: USERRA
• U.S. Department of Labor VETS: Your Rights Under USERRA poster
• Minnesota Department of Labor and Industry: Workplace posters
• ESGR: USERRA Contact
• ESGR: Military Service Requirement Support
• ESGR: Employer FAQ
• ESGR: How ESGR Can Help
• ESGR: Statement of Support